Anderson v. Barrow

Anderson v. Barrow

IN THE UTAH COURT OF APPEALS

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David Anderson,

Plaintiff and Appellant,

v.

Evan and Lisa Barrow,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030395-CA
 

F I L E D
(May 6, 2004)
 

2004 UT App 146

 

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Third District, Salt Lake Department

The Honorable Stephen L. Henriod

Attorneys: Todd D. Weiler, Salt Lake City, for Appellant

Bruce J. Nelson, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Jackson.

JACKSON, Judge:

David Anderson appeals the district court's conclusion of law that no prescriptive easement exists benefitting Anderson's property (the dominant tenement) and burdening "the block behind" (the servient tenement). We reverse.(1)

The finding that an easement exists is a conclusion of law. . . . [H]owever, . . . such a finding is the type of highly fact-dependent question, with numerous potential fact patterns, which accords the trial judge a broad measure of discretion when applying the correct legal standard to the given set of facts. We therefore overturn the finding of an easement only if we find that the trial judge's decision exceeded the broad discretion granted.

Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998) (internal quotes and citations omitted).

"A prescriptive easement is created when the party claiming the prescriptive easement can prove that use of another's land was open, continuous, and adverse under a claim of right for a period of twenty years." Nyman v. Anchor Dev., L.L.C., 2003 UT 27,¶18, 73 P.3d 357 (internal quotes and citation omitted). The parties have stipulated that Anderson's predecessors in interest met the requirements that the prescriptive use be open and adverse. Thus, the sole issue on appeal is whether that use was continuous for the twenty-year prescriptive period.

The district court rendered findings of fact, uncontested on appeal, that Mr. Clapham used the servient tenement for vehicular ingress and egress from 1947 until 1959. It also found that Ms. Henrie continued somewhat sporadic use of the servient tenement for vehicular access to visit her mother, Mrs. Clapham, from 1959 or 1960 until at least 1978 or thereafter. It then concluded that open and adverse use of the servient tenement was not continuous for the prescriptive period. This ruling is necessarily based on at least one of two possible implied conclusions of law: (1) that Ms. Henrie's use of the servient tenement for vehicular access does not as a matter of law qualify as prescriptive use on behalf of Mrs. Clapham, the owner of the dominant tenement; or (2) that even if Ms. Henrie's use qualifies, it was not continuous.

First, we easily conclude that Ms. Henrie's use of the servient tenement for vehicular access to visit her mother qualifies for prescriptive purposes. Prescriptive use of real property is not generally limited to use by those in privity of estate with the owner of the dominant tenement. See Alvey Dev. Corp. v. Mackelprang, 2002 UT App 220,¶10, 51 P.3d 45 (explaining that in cases of appurtenant prescriptive easements, the dominant tenement benefits from use of servient tenement); Homer v. Smith, 866 P.2d 622, 626 (Utah Ct. App. 1993) (holding use by dominant tenement owner's tenants and customers inures to benefit of owner for prescriptive purposes because "use by those associated with the dominant estate is acceptable" for prescriptive easement purposes); Butler v. Lee, 774 P.2d 1150, 1153 (Utah Ct. App. 1989) (holding easement by implication can be based on continuous use by claimant's patrons).

Ms. Henrie's use of the servient tenement to visit the owner of the dominant tenement cannot reasonably be said not to be for the benefit of the dominant tenement. She was "associated with the dominant estate," Homer, 866 P.2d at 626, though not the owner of the dominant estate. Thus, Ms. Henrie's use between 1960 and 1967 and thereafter may be tacked to Mr. Clapham's use from 1947 to 1959.(2)

Second, Ms. Henrie's use of the servient tenement was continuous.

[The lower court] erred in thinking that the adverse use had to be regular. All that is required is that the use be as often as is required by the owner of the dominant estate. . . . A way may be established by prescription without direct evidence of its actual use during each year. A use may be continuous though not constant. A right of way means a right to pass over another's land, more or less frequently, according to the nature of the use to be made by the easement; and how frequently is immaterial, provided it occurred as often as the claimant had occasion or chose to pass.

Richards v. Pine Ranch, 559 P.2d 948, 949 (Utah 1977) (emphasis added). The district court found as a matter of fact that Ms. Henrie regularly used the servient tenement during the period in question to visit her mother, Mrs. Clapham. Although this use amounted to not more than a few times a year, the infrequent nature of her use "is immaterial, [because] it occurred as often as [she] had occasion or chose to pass." Id. Under Utah law, the district court's findings regarding Ms. Henrie's use are sufficient to establish continuous prescriptive use.(3)

The district court's ruling that no prescriptive easement exists was based on erroneous legal conclusions regarding what types of use generally qualify for prescriptive purposes. Because it was not based on the sort of "fact-dependent question[s]," Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998) (internal quotes and citations omitted), often seen in prescriptive easement appeals, we may reverse the district court without giving deference to its application of the law to the facts.

Because Ms. Henrie's use of the servient tenement for vehicular access to the dominant tenement qualifies for prescriptive purposes, and because her use was continuous, we conclude the district court erred in determining that no prescriptive easement was created. Accordingly, we reverse.

 

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Norman H. Jackson, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

1. Because we determine that Anderson has properly demonstrated the existence of a prescriptive easement, we do not address his remaining claims regarding the existence of a public right of way, easement by necessity, easement by implication, and easement by prescription for pedestrian ingress and egress.

2. There is also some indication in the record that Ms. Henrie herself became a part-owner of the dominant tenement upon the death of her father, Mr. Clapham. If so, then her use directly, and not vicariously, inures to the benefit of the dominant tenement.

3. Although not challenged on appeal, we note the district court's finding appears to drastically understate the amount of use by Ms. Henrie and Mrs. Clapham alike. For example, there is evidence that Mrs. Clapham used the servient tenement, although infrequently, during the period in question. The district court, however, determined there was insufficient evidence to determine that Mrs. Clapham used the servient tenement at all during that period. Likewise, the district court's findings state Ms. Henrie used the servient tenement not more than once every nine months; but the evidence states she visited her mother every few months, and never more than nine months passed between visits.